DHARNIDHAR JHA, J.

1. The solitary appellant Shambhu Pandey was put on trial with two others, namely, Rabindra Pd. Singh and Ashok Kumar Singh on Sessions Trial No. 109 of 1988/20 of 1990 and was found guilty of committing offences punishable under Section 307 of the Indian Penal Code and Section 27 of the Arms Act. The two other accused who stood charged under Section 307 read with Sections 109 and 307 read with 34 respectively were acquitted. The sentences inflicted upon the appellant were rigorous imprisonments of 7 years and 5 years respectively on each of the above,respective Courts and the same were directed to run concurrently. The above judgment of conviction and order on sentence dated 28.6.1993 are being questioned presently in this appeal.

2. The informant PW 1 lodged his fardbeyan (Ext-2) while being treated in Samastipur hospital stating that while he was coming home, he found a commotion like situation in and around the campus of Samastipur Railway Junction in which a man was firing indiscriminately. Another person was telling that the accused, who was firing shots, was a police man and was putting the department in disrepute by his misdeeds of being drunk and firing shots. The informant alleged that while he was attempting to come out of the railway station under an impression that the firing had died down, he was hit in his scrotum by a bullet which caused profused bleeding and forced the informant to hire a Rickshaw to rush to" the hospital where he was admitted for treatment.

3. On the basis of Ext-2, the FIR of the case, Ext-4, was drawn up and the investigation was taken up which ultimately resulted in the trial of the accused persons and passing of the impugned judgment.

4. It was contended by Sri Ashutosh Kumar, the learned counsel appearing for the appellant that out of five witnesses examined in the case PWs 2 and 4 were witnesses of formal character having proved the writings of the fardbeyan Ext-2 and that of the FIR Ext-4, PW 5 was declared hostile. As such, it was contended that the solitary witness, i.e., PW 1 Naresh Kumar Vikal was the witness on whose evidence, which was supported as per the impugned judgment by the evidence of Dr. Anil Chandra Sinha, PW 3, the conviction was recorded. It was contended that on reading of the evidence of the solitary witness PW 1 it may be found that in fact he had not identified any one of appellant as the man who had fired the shots and had created a situation of alarm on and around the place of occurrence. As such the support of the medical evidence appears of no value or consequence. It was further contended that it was a fit case in which the appellant ought to have been acquitted.

5. I was taken through the evidence of PWs 1 and 3. PW 1 in his entire examination-in-chief did not state that he had identified the appellant as the man who was firing shots or who had fired the shot which injured him. In fact, after considering the evidence of PW 1 what I find is that the informant could not know as to who was firing shots and had created the pandemonium at the railway station and further, as to whose shot had hit him from his back at the particular part of his body. The informant mainly stated in his examination-in-chief itself that an injured man was also rushed to the same hospital where PW 1 had been admitted and persons present there pointed out that it was this appellant and he had fired as generally as also at the informant and as such, he had identified the appellant. In cross-examination paragraph 9 the informant stated that he had not seen or identified the appellant earlier on the day he was deposing in Court and that he could not know that it was this appellant Shambhu Pandey. Thus, the evidence of PW 1 appears suspect as regards the identity of the real culprit. The identity of the real culprit was not established. The evidence appears rather of no value and there is no definite identity established from it of the appellant as the man who ha